The Gujarat High Court on Monday gave relief to a man accused of raping his wife on the grounds that there was no law on marital rape. The court , however, advocated that marital rape should be made an offence punishable under law.
“The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalised,” the court said.
Questioning the notion of “implied consent” in a marriage, the high court said: “The law must uphold the bodily autonomy of all women, irrespective of their marital status.”
The court made the observations while delivering judgment on a petition filed by a man seeking that an FIR filed against him by his wife, on charges of rape (Indian Penal Code 376) and unnatural sex (IPC 377), among other charges, be quashed.
Justice J B Pardiwala said a man can’t be booked for raping his wife under section 376 of the IPC, since it was not covered under IPC 375. “The husband cannot be prosecuted for the offence of rape at the instance of his wife in view of exception-II in section 375 of IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, who is not being under 18 years of age, is not rape.”
It allowed initiation of criminal proceedings for unnatural sex, but quashed this section against the petitioner since, according to the order, “Except the sexual perversions of sodomy, buggery and beastiality, all other sexual perversions, would not fall within the sweep of section 377 of IPC.”
The high court, while directing the police to remove rape and sodomy charges against the petitioner, ordered it to add sections for sexual harassment and domestic violence under section 498a of the IPC.
Justice Pardiwala said: “…A law that doesn’t give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows the men and women to believe that wife’s rape is acceptable.”
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